COMMENT: SUPERIOR COURTS BILL 2010 (Deadline 30 June 2010)

THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT

THE HONOURABLE MR J.T. RADEBE MP.  PARLIAMENT OF THE REPUBLIC OF SOUTH AFRICA.

FOR ATTENTION: MS J.A. DE LANGE

jdelange@justice.gov.za copy: jskosana@justice.gov.za; drudman@justice.co.za

COMMENT: SUPERIOR COURTS BILL 2010 (Deadline 30 June 2010)

  1. We refer to our letter dated 30 May 2010 where we asked you to include an MPL (Muslim Personal Law)  Matters Special  Division in section 8 of the above Bill.
  2. The Muslim  Judicial Council has informed us that they support this request and have communicated this directly to you.
  3. The Muslim community has been engaging government more formally   over the past 11 years to get legal consequences for Muslim marriages and matters relating to Muslim Personal Law. The Muslim Marriages Bill was seen as a vehicle to achieve this. It appears that this Bill was premature now that the Superior Courts Bill 2010  will shape our court structure for the future. It also appears that the Muslim Marriages  Bill (MMB)will be scrapped because of the diverse  and opposing views in the Muslim Community. As you know the MMB  provides for a Muslim judge with two expert assessors to make judgements with regard to MPL matters. It is not clear whether these judges will come from the general division or our proposed specialist division or whether they will have regional or national jurisdiction. This provision in any case has its own problems and may affect the credibility of Muslim judges if there are questions about their dedication to Islamic practices. The better option is the MPL Matters Special  Division which will be staffed with Alims( expert jurists in Islamic law) at the level of a judge. The summary to the objects of the Bill (rule 258(3) acknowledges that the staffing of courts like specialist courts may take some time and that training and development over the long term must not be overlooked and in fact is a reality because of limited state resources. Similarly it may take a decade or two to have Alims at the level of a judge but then if the Muslim Community could struggle for over 300 years in South Africa for their freedoms they can be patient for another decade or two and eventually get what they want. Transitional arrangements can always be made. We have noticed the brave attempts of High Court judges to give some legal consequences to Muslim marriages in dozens of cases throughout the country. Once regarded as a backward step (Ismail vs Ismail) the recognition of Islamic marriages is now considered as a reflection of the progressive values embodies in the South African Constitution an objective of the Superior Courts Bill. In principle it appears that there are no longer barriers to the recognition of Islamic marriages or at least to some of their consequences in the South African legal framework. The development of law by a progression of cases is a slow process and now with the inevitable  demise of the Muslim Marriages Bill at least in its present form there will be a vacuum creating wide discontent and disappointment in the Muslim community. It is the view of the    AL JAMA-AH Political Party that the legislature should stick to providing structures to facilitate the aspirations of communities to give effect to and practice  their religious beliefs(section 31 Bill of Rights) and leave it to those communities to deal with ecclesiastical matters.( At one time the Muslim Marriages Bill provided for a R50 000 fine if the law was not followed in taking a second wife. These are matters our lawmakers and courts  should be spared. No wonder the daggers are out with many other provisions of the Muslim Marriages Bill as religious leaders  and civil society push the agendas of their sects and constituencies. The Party has been informed that  just last week a very senior religious leader has declared all those who support the Muslim Marriages Bill as apostates and out of the fold of Islam.  Only the wisdom of Solomon will address the diversity of views, with respect ,out of the reach of our respected and honourable judges with the best intentions.
  4. The Superior Courts Bill 2010 must not ignore the mandate of the National Planning Commission to get communities to chart the way they want to live in by 2025 as part of the country’s VISION 2025. For Muslims  this will a  Muslim Personal Law (MPL) Matters  Special Division staffed by Alims (expert jurists in Islamic Law) at the level of a judge. This is also  accepted by  the Law Commission of South Africa “ The ideal method of legally enforcing Islamic marriages is through the establishment of separate courts presided over by competent Qadis(judges) who are expert jurists in Islamic law  but not now  possible because of limited state resources”.( Chapter 5 clause 5.1: The rationale behind and the principles underlying the draft bill on Islamic Marriages.)